Knox v. American Rolling Mill

• Decision Date: 03 December 1908
• Citation: 236 Ill. 437,86 N.E. 90
• Parties: KNOX v. AMERICAN ROLLING MILL.
• Court: Illinois Supreme Court

236 Ill. 437

86 N.E. 90

KNOX

v.AMERICAN ROLLING MILL.

Supreme Court of Illinois.

Oct. 26, 1908.

Rehearing Denied Dec. 3, 1908.

Appeal from Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; A. H. Frost, Judge.

Action by Cyrus Knox against the American Rolling Mill. From a judgment of the Branch Appellate Court for the First District (140 Ill. App. 359), affirming a judgment for plaintiff, defendant appeals. Affirmed.F. J. Canty, J. C. M. Clow, and E. E. Gray (H. E. Long, of counsel), for appellant.

Darrow, Masters & Wilson, for appellee.

This is an action brought by appellee, against appellant, in the circuit court of Cook county, for personal injuries sustained by him July 28, 1902, by falling into a pit at appellant's mill, in Muskegon, Mich. The jury returned a verdict in favor of appellee for $2,700, upon which judgmentwas entered. The Appellate Court, on appeal, affirmed the judgment of the lower court, and the case was thereupon brought to this court for review. Appellee was night foreman for the appellant company, and had been holding that position for something over six weeks. Appellant's plant consisted of a muck mill, an open hearth steel plant, two finishing mills, and a gas house, all under one roof. The plant ran day and night. All but the steel plant, however, shut down over Saturday night and Sunday. Appellee usually went to work at 6 o'clock on week day nights, and at any time between 8 and 10 o'clock on Sunday nights. The furnace and engine room appear to have been separated by a wall about 3 feet high, both being in the central part of the building. The floor of the engine room was lower than that of the furnace room, with two or three steps between. In the former room was a long pit, in which ran a large fly wheel and a large pulley wheel, connected by a belt. The axles of both these wheels stood a little above the floor, the distance between the rims being about 20 feet. The pit between these two wheels was usually covered with planks, 20 or more in number, to enable persons to walk across. These planks were loose, and were never taken up, except for the purpose of doing repairing about the wheels, which could only be done when the engine was not running. Appellee left the plant each week between 6 and 7 o'clock Saturday morning, and did not return until Sunday night, and had no knowledge of what was going on in the plant in these intervals unless he was notified. Three of the planks across this pit were removed, according to the testimony of appellee, some time after he left on the Saturday morning immediately preceding the accident, and before the Sunday night when the accident occurred. The testimony of appellant tends to show that the planks were removed two or ‘about three days' before the time of the accident. The opening left by taking up these planks was about 3 feet wide by four feet long. They appear to have been taken up for the purpose of doing some babbiting work about the shafts of the wheels. This work had to be done in the daytime. On the Sunday night in question appellee went to work about 7 o'clock. That night he had several men cleaning up the mill, preparatory to starting up Monday morning. They were at this work until about midnight, and then went to lunch. Appellee had instructed them that after lunch they should couple up the nine-inch mill. While they were eating, he sat down by the furnace for a time, and after the men had eaten their lunch, the appellee started through the engine room to go to the nine-inch mill, where the men were at work. He walked down the steps into the engine room, to pass in a northwesterly direction across the pit on the planks, and stepped into the open space left by the removal of the three planks, falling into the pit. His left arm was drawn from the socket at the shoulder, and the muscles and tendons loosened from the back, some of them being broken. The evidence shows, without contradiction, that for over two years he was unable to dress himself, and that at the time of the trial, five years after the accident, there was no motion of his arm in any direction when it was lifted above his shoulder, that there was atrophy of the arm and shoulder muscles, and that the injury was permanent. The evidence also tends to show that the place where the accident occurred was in a semidark condition, there being some light from the furnace room, and light from a torch 20 or 25 feet away and from another torch a little nearer.

CARTER, J. (after stating the facts as above).

At the close of plaintiff's testimony, and also when all the evidence had been introduced, appellant offered an instruction asking to have a verdict directed for defendant. These instructions were refused, and exceptions duly taken. It is insisted that there was no evidence in the record justifying the verdict; that appellee not only assumed the risk of the accident, but was guilty of contributory negligence. As there is evidence in the record fairly tending to support the verdict of the jury, which has been approved by the trial court and the judgment of the Appellate Court, we cannot inquire into those questions, except in so far as to find whether the law was properly applied on the trial.

Counsel for the appellant have not in their argument clearly distinguished between contributory negligence and assumption of risk. These subjects are different and distinct in law, although they may both arise under the facts of a particular case. Chicago & Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492, 68 N. E. 74. In that case we said (page 502 of 203 Ill.,page 77 of 68 N. E.): ‘Every person suing for a personal injury must show that he was in the exercise of ordinary care and caution for his own safety, so that the question of contributory negligence may be involved in every case; but an employé may have assumed a risk by virtue of his employment, or by continuing in such employment with knowledge of the defect and danger, and if he is injured thereby, although in the exercise of the highest degree of care and caution and without any negligence, yet he cannot recover.’ The evidence is uncontradicted that during the time of appellee's employment by appellant the pit in question had always been covered with planks up to within a day or two of the accident; that the employés were accustomed to go back and forth across these planks in passing through the mill, though there was another way that could be taken if desired; that when the pit was so covered there was no danger in crossing. The appellee swore positively that the planks had never been taken up before while he was at work for appellant, and...